Page:Harvard Law Review Volume 5.djvu/406

390 390 HARVA RD LA W RE VIE W. poration of the " Tilden Trust," and elected to convey the entire residue to that institution. An admirable will and willing trustees — and yet the bequest was not sustained. If the trustees had not elected to give the property to the " Tilden Trust," that institution would have had no claim, nor would there have been, under the law of New York, any means of compelling them to apply it to the alternative charitable purposes. Therefore, the Court of Appeals decided, the trustees could not dispose of the property in either of the two modes indicated in the will, and the entire residue, amount- ing to some $5,000,000, must be distributed among the heirs and next of kin. The question of the proper interpretation of the will apart, the failure of the " Tilden Trust " is due to a combination of two causes : the one legislative, the other judicial. Had the Tilden case arisen in England, or in any of our States, except New York, Michigan, 1 Minnesota, 2 Maryland, 3 Virginia, 4 and West Vir- ginia, 5 the trust would have been established. The precise nature of the legislation in New York will be best appreciated by con- trasting a private trust with a charitable trust. A trust, being an obligation of one person to deal with a specific res for the benefit of another, cannot be enforced unless there is a definite obligee, that is, a cestui que trust, who can file a bill for its specific performance. Furthermore, as equity follows the law, the rule of perpetuities must apply to trusts as well as to legal estates. By the English and general American law, neither of these doc- trines, which are of universal application to private trusts, is extended to charitable trusts. On the one hand, the considera- tions of public policy, which lie at the foundation of the rule of perpetuities in the case of private property, are obviously inappli- cable to property devoted to charity ; and, on the other, the specific performance of the charitable trust is abundantly secured through the attorney-general acting in behalf of the State. In New York, however, the English law of charitable trusts has been abolished by statute, and charitable trusts are thereby put 1 Methodist Church v. Clark, 41 Mich. 730. 2 Little v. Willford, 31 Minn. 1 73. 8 Gambel v. Trippe (Md. 1892) 23 Atl. R. 461. 6 Bible Society v. Pendleton, 7 W. Va. 79.
 * Stonestreet v. Doyle, 75 Va. 356.